Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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8.28 The court must not vary a custodial supervision order to a non-custodial supervision order
during the nominal term unless satisfied on the evidence available that the safety of the
person subject to the order or members of the public will not be seriously endangered as
a result of the variation. 19 The court must also have regard to a number of matters under
section 40 of the CMIA, such as the nature of the person’s mental impairment. These
matters will be discussed in more detail in Chapter 9.
8.29 Where the person subject to the supervision order is a forensic patient or forensic
resident, courts must not vary a custodial supervision order to a non-custodial supervision
order unless the person has completed a period of at least 12 months extended leave. 20
The court must consider whether the forensic patient or forensic resident has complied
with any conditions of their extended leave. 21
8.30 The person subject to the supervision order may appeal any decision to confirm or vary a
custodial supervision order to the Court of Appeal. 22
Non-custodial supervision orders: applications to vary or revoke and reviews
8.31 When a person subject to a non-custodial supervision order applies to vary or revoke
that order, or has a review or further review of the non-custodial supervision order, the
court can decide not to change the order either by confirming the order or by varying the
conditions of the order. Alternatively, the court may change the order. The court can vary
the order to a custodial supervision order, resulting in the detention of the person, or it
can revoke the non-custodial supervision order and release the person. 23 The person may
appeal a decision confirming or varying a non-custodial supervision order to the Court
of Appeal. 24
8.32 In deciding whether to vary or revoke a supervision order, the court must have regard
to a number of matters, such as the nature of the person’s mental impairment and the
resources available for the treatment and support of the person in the community. These
matters will be discussed in more detail in Chapter 9.
Major reviews
8.33 The third way a court can vary or revoke a supervision order is through a major review.
The court that originally made the supervision order must conduct a ‘major review’ of
the order at least three months before the end of the nominal term of the order, and
at intervals not exceeding five years after that for the duration of the order. 25 Chapter 7
discusses nominal terms in more detail.
8.34 The purpose of a major review is to determine whether to release the person subject to
the supervision order. 26
8.35 In a major review of a custodial supervision order, there is a presumption in favour of
varying the order to a non-custodial supervision order. The court must vary the order to
a non-custodial supervision order, unless satisfied that the safety of the person subject to
the order or members of the public will be seriously endangered because of the variation
of the order. 27 Where the court is satisfied that the safety of the person subject to the
order or members of the public will be seriously endangered because of the downgrading
of the order, the court must confirm the order or vary the place of custody. 28
19 Ibid s 32(2).
20 Ibid s 32(3)(a).
21 Ibid s 32(3)(b).
22 Ibid s 34(1).
23 Ibid s 33(1).
24 Ibid s 34(1).
25 Ibid s 35(1).
26 Ibid s 35(2).
27 Ibid s 35(3)(a).
28 Ibid.
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